Category Archives: Dress Codes

The power of punctuation is alive and well, and proof if it were needed that the devil is always in the detail!

It would appear that the media have, over the past few days, encouraged a view that banning the wearing of Muslim headscarfs by women in the workplace is now lawful. While this is not quite “Fake news on a Trumpian scale,” it cannot be considered an accurate statement of the law either.

The igniter for these headlines is the recent European Court of Justices’ (“ECJ”) decision in the case of Achbita. In short, the case concerned a Belgian Company’s dress code that prevented employees from wearing any visible religious, political or philosophical symbols. The dress code was used as a basis for preventing a Muslim employee from wearing an Islamic headscarf while at work. The Court decided that, as the dress code applied to all religions, Ms Achbita was not treated less favourably on the grounds of her race.

Before we begin basking in the euphoria of premature conclusions that a blow has been struck for common sense, it is worth noting that the Court, unprovoked, added that it was possible for this position of neutrality adopted by the employer to be indirect discrimination.

By way of example, if Ms Achbita had not been a customer facing employee, preventing her from wearing her headscarf at work may amount to discrimination if the employer could not objectively justify the ban.

Employers need to be alert to the fact that although having a dress code prohibiting the wearing of all religious symbols in the workplace may provide a defence against a claim of direct discrimination, it will not by itself defeat all discrimination claims associated with the wearing of religious symbols. It is also worth noting, although outside the scope of this article, that if the dismissal was because of Ms Achbita’s insistence on wearing her headscarf in a customer facing role, exploring whether she may be placed in a non-customer facing role may affect, under English Law, the fairness of the employer’s decision to dismiss.

Consider for instance the case of Bougnaoui, here the ECJ decided that it was unlawful for an employer to accept a customer’s request not to be served by an employee wearing an Islamic headscarf. The Court did not consider the wishes of a customer to be a “genuine and determining occupational requirement,” which would have justified the discrimination.

There will always be a balance to be struck between the interests of the employer and the detrimental impact on the employee. In the case of Bougnaoui the ban amounted to direct discrimination because it was imposed in response to a customer’s objection rather than being based on any existing dress code designed to achieve neutrality.

As a general approach, employers should treat employees’ requests to circumvent a dress code for religious reasons carefully, sensitively and respectfully; and should consult with the employees with a view to reaching a satisfactory solution. This may very well prevent an employer from having to defend itself against such claims.

SUMMARY: Readers may remember that, last year, Emily Blunt criticised the Cannes film festival when a woman was denied entry to a screening for wearing flat shoes and that in May of this year it was reported that a woman was sent home from work after refusing to wear high heels. With recent statistics showing that women are buying more trainers than high heels it may be fair to assume that flat shoes are replacing heels as the woman’s shoe of choice. But how does this impact on the workplace and how might organisations deal with, what might be termed, more casual attire being worn by its employees? This is where the use of a dress code policy comes into play. For those employers considering the implementation of a dress code policy we have set out below five key considerations which should be taken into account when deciding the dress code that best suits your organisation’s requirements.

Workplace Dress Code Policies

Make dress codes relevant to roles – consider the reasons behind the code.

Ensure the code is non-discriminatory, applying equally to men and women. Different standards of dress can be identified as long as the standards, for example for males and females, are equivalent and applied equally.

There could be a requirement to cover tattoos and body piercings if there is a sound business reason for this e.g. a customer facing role.

Workers may want to wear items that manifest their religious faith e.g. a hijab or kippah. It may be possible to restrict this, but there could be discrimination issues – seek legal advice!

The dress code should be in writing and communicated to all staff. Consultation would help to increase overall adherence.

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SUMMARY: In Begum v Pedagogy Auras UK Ltd, it was held that a nursery had not discriminated against a Muslim woman who wanted to wear a jilbab to work, when it required staff not to wear garments that might constitute a tripping hazard to themselves or the children in their care.

Background to case

A trainee nursery assistant (Ms B) was an observant Muslim whose religious belief required her to wear a garment that reached from her neck to her ankles (a jilbab). After a half-day trial, Ms B was invited to interview. She wore a jilbab on both the trial day and the interview day. At the time of the interview, the nursery asked her whether she might wear a shorter jilbab to work. The nursery indicated to Ms B that whatever garment she wore, it could not constitute a tripping hazard for children or staff.

Ms B subsequently refused to take the job and reported that she had been insulted by the nursery’s approach to uniform, which went against her religious beliefs.

Ms B brought a claim in the employment tribunal for discrimination on grounds of religion or belief.

Decision

The Employment Appeal Tribunal upheld the decision of the employment tribunal which was that Ms B’s discrimination claim was unsuccessful.

It was noted that there was another member of staff at the nursery who wore a jilbab and 25% of the workforce were Muslim women. It was clear that this was a workplace in which jilbabs were permitted, so long as they did not constitute a tripping hazard. The Employment Tribunal had found that at no point was Ms B told she could not wear a jilbab while working at the nursery.

The nursery demonstrated a tolerance towards employees’ religious beliefs, but had to balance a potential employee’s right to manifest their religious belief with its health and safety obligations and did so successfully in this case; it was found that it had not discriminated against Ms B. However, in other instances, the enforcement of a dress code can prove more problematic for employers given the protection that employees have under the Equality Act 2010.

Law

The Equality Act 2010 essentially gives employees the right not to be directly or indirectly discriminated against on grounds of a protected characteristic. Protected characteristics include age, sex, race, religion or belief, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy or maternity, race and disability.

Ms B alleged that she had been indirectly discriminated against on grounds of the protected characteristic of religion or belief.

Indirect discrimination on grounds of religion or belief occurs where:

An employer applies to an employee a provision, criterion or practice (PCP).

The employee has a particular religion or belief.

The employer applies (or would apply) that PCP to persons not of the same religion or belief as the employee.

The PCP puts or would put persons of the employee’s religion or belief at a particular disadvantage when compared to other persons.

The PCP puts or would put the employee at that disadvantage.

The employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

Although in this case, it was held that there was no discriminatory PCP (i.e. no indirect discrimination), if there had been a discriminatory PCP, the employer may well have been able to justify the discrimination by showing that that:

it had a legitimate aim (for example, compliance with health and safety obligations); and

the means chosen (the requirement to wear a garment which did not present a tripping hazard) for achieving that objective were proportionate.

What can employers require in terms of dress code?

The requirements an employer is permitted to include in its dress code are likely to depend on the nature of an employer’s business, the extent to which there are health and safety hazards in its work, the level of employees’ contact with customers and any requirement to wear a uniform.

An employer should keep potential issues of discrimination in mind when formulating a dress code. Regard should be had to possible religious sensitivities, and also to the principle that, while an employer may have different rules for men and women, the rules should not be more stringent for one group than another.

In this case, it was found that the employer did not ban ankle-length jilbabs but that Ms B had worn a flowing garment. The employer’s concern was that this could constitute a tripping hazard and was acutely aware of its health and safety obligations. If the employer had banned jilbabs completely, this is likely to have been indirectly discriminatory; the employer would then need to justify the indirect discrimination and such a ban may not have been a proportionate means of achieving a legitimate aim (see above in relation to “law” for justifying discrimination).

An employer may well succeed in justifying such indirect discrimination on the grounds of health and safety where an employee will, for example, be working with children. However, there may be some work environments where there are no health and safety considerations which could justify such a ban.

It is likely to be more difficult for an employer to be able to justify not permitting an employee to wear a head scarf (hijab) than a full length garment (jilbab). Although not UK law, Abercrombie & Fitch discovered this to its detriment when there was a recent American Supreme Court decision against it following its refusal to hire a Muslim woman because she wore a head scarf. Abercrombie and Fitch said that the scarf clashed with its dress code, which called for a “classic East Coast collegiate style”. We consider this argument would be unlikely to justify discrimination if it occurred in the UK.

We advise that all employers consider whether to have a written dress code policy. The policy could, for example, include a provision that employees may wear appropriate religious and cultural dress unless it creates a health and safety risk to the employee or any other person.